Doctorow's First Law

By Cory Doctorow
|

Aug 02, 2010

With a Little Help is on track for a September release. The printer has found the right paper; the binder is ready to do a test binding; and all is well on Earth. I know, I said July—and I could have launched in July—but that would have meant interrupting the launch with a monthlong, Internet-free family holiday in August, right around the time I get back from the World Science Fiction Convention in Melbourne, Australia, and my subsequent German and Dutch tours.

In the meantime, I've been filling the time productively by attempting to discover which online booksellers exist to serve the interests of copyright owners, like me, and which ones are seeking to unfairly bind copyright holders (and consumers) to their platforms and, as a result, diminish our negotiating power. I'm happy to say that after much work, I have persuaded three major retailers to offer my e-books without any technology or license conditions that would prohibit my customers from moving the e-books they've purchased to a competitor's device: Amazon, Barnes & Noble, and Kobo.

Lockdown

Strange as it may sound, this is a major victory. I first discovered just how little bargaining power creators have in the digital marketplace back in 2008, when Random House Audio and I approached Audible, the Amazon division that controls most of the audiobook market and the sole audiobook supplier to iTunes, and asked them to carry the audio edition of my New York Times bestseller Little Brother without DRM. We were turned down.

To Audible's credit, they relented when my next book, Makers, came out. However, they informed me that Apple, their largest retail partner, would not carry the title in the iTunes store without DRM. And despite agreeing to forgo the DRM, Audible's license agreement still contained contract prohibitions on customers' moving their property to competing platforms, along with plenty of other terms that either were no good for my business interests and/or were terms that I personally would not agree to in order to buy an audiobook.

I tried to remedy this creatively by asking Audible to allow me to add some preliminary language to the audio edition, something that said, "notwithstanding any agreement you clicked on to buy this book, Cory Doctorow and Random House Audio, as the copyright holders, hereby give you their blessing to do anything that is permitted by your local copyright law." In other words: don't break the law, but feel free to do anything else—the same terms under which your car, dishwasher, and every traditional book on your bookshelf was sold to you. Again, Audible declined.

This led me to formulate something I grandiosely call Doctorow's First Law: "Any time someone puts a lock on something that belongs to you, and won't give you a key, they're not doing it for your benefit."

This year, I set out to test this law. In May, I cornered Macmillan CEO John Sargent and CTO Fritz Foy at the Macmillan BEA party. As the publishers of my books with Tor, I asked them if they'd be willing to try offering my e-books to all the major online booksellers—Amazon's Kindle store, Apple's iPad store, Barnes & Noble's Nook store, Sony's e-book store, and Kobo—as DRM-free products with the following text inserted at the beginning of the file:

"If the seller of this electronic version has imposed contractual or technical restrictions on it such that you have difficulty reformatting or converting this book for use on another device or in another program, please visit http://craphound.com for alternate, open format versions, authorized by the copyright holder for this work, Cory Doctorow. While Cory Doctorow cannot release you from any contractual or other legal obligations to anyone else that you may have agreed to when purchasing this version, you have his blessing to do anything that is consistent with applicable copyright laws in your jurisdiction."

As I explained to John and Fritz, although all my books are available as downloads for free, I often hear from readers who want to buy them, either because it is a simple way to compensate me (I also maintain a public list of schools and libraries who've solicited copies of my books so that grateful e-book readers can purchase and send a print copy to one of them, thus repaying my favor and doing a good deed at the same time) or because they like the no-hassle option of tapping on their device to buy a book. I am more than happy to offer my otherwise free books for sale in any vendor's store, of course, but only if the vendors agree to carry them on terms I feel I can stand behind as an entrepreneur, as an artist, and as a moral actor.

John and Fritz strongly supported the idea. Macmillan, after all, had just gone to the mat with Amazon for control of e-book terms of sale, making control a priority in its future dealings with electronic retail and wholesale channels. Now, there are some writers, agents, or publishers that want DRM and restrictive EULAs. And though I can't understand why, we are at least in agreement on this point: it should be the copyright holder's choice. When it comes to which restrictions copyright law should place on e-book readers, the copyright proprietor—whether the author or the publisher—should call the shots, not the retailers.

I'm happy to report that Amazon, to its eternal credit, was delighted to offer my e-books without DRM and with the anti-EULA license language, as was Barnes & Noble and Kobo. Why Amazon's Kindle division was happy to do what its Audible division had categorically rejected is still beyond me, but I'll take any sign of fairness I can get. I can only hope that Amazon's other digital divisions catch up with Kindle, and if they do, I'll be eager to have my audiobooks for sale in the Audible store. Amazon is a retailer that has literally revolutionized my life, my go-to supplier for everything from toilet brushes to used DVDs for my toddler. And in addition to selling my own works, I also sell upwards of 25,000 books a year through Amazon affiliate links in my online book reviews. This makes me a one-man, good-sized independent bookstore, with Amazon doing my fulfillment, payment processing, stocking, etc.

Unfortunately, I had no such luck with Apple or Sony. True to my earlier experience with Apple's iTunes store, Apple has a mandatory DRM requirement for books offered for sale for the iPad. I know many Apple fans believe that because Steve Jobs penned an open letter decrying DRM that the company must use DRM because they have no choice. But this simply isn't true. Sony has the same deal.

Cracked Thinking

Dirty fighting instructors say: "any weapon you don't know how to use belongs to your enemy." One illustrative example of this principle is to be found in DRM. Until last week, U.S. law protected DRM, making it illegal to break encryption or other technological protections under nearly any circumstance. In other words, if Apple offers a DRM-locked edition of one of my books, even I am not legally allowed to remove the DRM without Apple's permission, even if I'm making a perfectly legal use under copyright law. And I certainly can't authorize my readers to do so.

On July 26, the law eased a little when the U.S. Copyright Office granted an exemption to the Digital Millennium Copyright Act that allows DRM-cracking on iPhones and other mobile phones (and possibly other devices, like iPads, though no one knows for sure) for the purpose of installing third-party software. But the exemption doesn't allow for the creation or distribution of tools to accomplish this, which makes the whole thing something of a Pyrrhic victory. And remember, digital editions are generally licensed, not owned. Therefore, just because you may not be breaking the law by cracking your device, if you're violating your license terms you can still be denied service.

If you think about it, this is a rather curious circumstance, because it means that once a technology company puts a lock on a copyrighted work, the proprietor of that copyright loses the right to authorize his audience to use it in new ways, including the right to authorize a reader to move a book from one platform to another. At that point, DRM and the laws that protect it stop protecting the wishes of creators and copyright owners, and instead protect the business interests of companies whose sole creative input may be limited to assembling a skinny piece of electronics in a Chinese sweatshop.

What's more, many of these distribution channels won't even allow copyright holders the option of presenting their works without DRM. So if you sell $1 million worth of DRM-locked Kindle books, you are essentially a million bucks in hock to Amazon—that being the cost of the investment you'd have to ask your audience to abandon in order to switch to a competing platform. How does giving your retail partners that kind of market control benefit you, the copyright holder?

Still, I'm encouraged by the actions of Amazon, Barnes & Noble, and Kobo in adopting my terms for sale on their platforms. Hey, three out of five is a pretty good showing—it's three more than we had a year ago. And it gives me hope that authors and the publishing industry can pull together and start to demand that all the retail channels yield copyright control to creators and publishers, rather than hijacking it to their benefit.

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